EDA1722

This is an appeal on behalf of Glanmire Residential Care Limited (“the Respondent”) against a decision of an Adjudication Officer (DEC-E2016-087, dated 8 June 2016). The Notice of Appeal was received on 19 July 2016. The Adjudication Officer upheld the Complainant’s claims of pregnancy-related gender discrimination and harassment and awarded her €26,320.00 in compensation. The Court heard evidence from the Complainant and, on behalf of the Respondent, from Ms Magdelena Molnarne, a co-worker of the Complainant, and Ms Mary O’Sullivan, the Manager of the Respondent’s nursing home.

The Complainant was employed as a part-time cleaner at the Respondent’s nursing home between 28 November 2011 and 22 March 2013. It is common case that she informed the director of nursing on 24 January 2013 that she was some three months’ pregnant with her fifth child. The Complainant alleges that, thereafter, she was the subject of regular harassment from the Director of Nursing which harassment took the form of spurious concerns about her ability to do her work and also in the form of references being made to her pregnancy at age 32. This culminated in the Complainant believing that her employment had been terminated by the Respondent on or around 22 March 2013. The Respondent denies that the Complainant was the subject of harassment arising from her pregnancy or at all and that she voluntarily left her employment in March 2013.

Submissions of the Parties

The Complainant’s Submission

The nursing home was the subject of an unannounced HIQA inspection on 5 March 2013. The ensuing report raised concerns about cleaning practices in an area for which the Complainant had been responsible immediately prior to the inspection. The Complainant submits that she had been working on her own for three days prior to the inspection as one of her colleagues was on annual leave. She had done her best but admitted that it wasn’t possible in the time available to do every task that would normally be done by two people. The Complainant further submits that, following receipt of the HIQA report, she was summoned by Ms O’Sullivan, the Manager, who blamed her for the shortcomings in cleaning standards identified in the report and failed to make any allowances for the fact that she had been working on her own. She also told the Court that Ms O’Sullivan informed her, on that occasion, that her (the Complainant’s) co-workers had been complaining that she hadn’t being doing her work properly and that that was placing an extra burden on them.

The Complainant told the Court that on some (unspecified) date after her exchange with Ms O’Sullivan, the Director of Nursing called a meeting of the cleaners to discuss the reallocation of certain duties between them of which the Director of Nursing appears to have taken the view were beyond the Complainant’s capability because of her pregnancy. The Complainant submits that this intervention by the Director of Nursing further exacerbated tensions that were already present between the cleaning staff.

According to the Complainant, the next significant event occurred on 13 March 2013. She says the Director of Nursing called her into her office, without notice, shortly after she arrived for work on that date. She alleges the Director of Nursing told her that she couldn’t work in the nursing home any longer because of her pregnancy and invited her to commence her maternity leave or to go on sick leave. The Complainant says she refused to accept either of those options and, as a consequence, was sent home. She tried, unsuccessfully, to contact Ms O’Sullivan by telephone. She told the Court that she came to the nursing home on 21 March 2013 and on that date was given a letter and a pregnancy risk assessment form and told to visit her GP. She visited her GP later that day and he certified her fully fit for work. The Complainant says she then telephoned Ms O’Sullivan to relay to her the outcome of the consultation with her GP and that Ms O’Sullivan then telephoned her GP who thereafter telephoned the Complainant.

The Complainant next submitted that she attended her workplace on 22 March 2013 as she was of the view that she had been certified fit for work. She met with the Director of Nursing and Ms O’Sullivan who asked her to consider changing her GP. She says Ms O’Sullivan mentioned to her that she was at risk of suffering a prolapse in response to which the Complainant asked whether or not she could move to lighter duties. She submits that she was then told to go home.

Submission on behalf of the Respondent

The Respondent accepts that there were concerns about the Complainant’s work following the HIQA report and, as a consequence, that it was considering making some changes to the cleaning staff’s work practices. However, it submits that these changes were in no way connected to the Complainant’s pregnancy in relation to which it accepts that it had been on notice since January 2013. Rather, the proposed changes were motived entirely by the need to offset any reputational or professional damage to the nursing home’s reputation that might flow from the negative findings made in the HIQA report.

Ms Magdalena Molnarne, who was also employed as a cleaner in the nursing home at the material time, gave evidence on behalf of the Respondent. Her evidence centred on a meeting of cleaning staff with the Director of Nursing which she says took place in mid-February i.e. before the HIQA inspection. Ms Molnarne told the Court that the Director of Nursing, while inspecting the progress being made by individual cleaners, noticed that the Complainant’s area hadn’t been fully cleaned. The Director of Nursing then called a meeting which was attended by the Complainant, Ms Molnarne and two other cleaners. She submits that when the Director of Nursing queried with the Complainant why her area had not been cleaned up to standard that the Complainant replied, “I can’t do it anymore because I am pregnant.” She submits that the Complainant also said on the same occasion that she didn’t want to do cleaning work any longer and expressed a preference to work in the kitchen to which the Director of Nursing replied, according to the witness, that the Complainant couldn’t get kitchen work because she had been employed as a cleaner. The witness also told the Court that she heard the Director of Nursing tell the Complainant on that occasion that she could give the Complainant a letter to help her. Ms Molnarne took over the shifts previously worked by the Complainant with effect from 22 March 2013 at the direction of the Director of Nursing.

Ms Mary O’Sullivan also gave evidence for the Respondent. She began by outlining her management role and the division of tasks with the Director of Nursing, who she told the Court, was responsible for the day-to-day operational management of the nursing home. She told the Court that the Director of Nursing had brought certain concerns about the quality of the Complainant’s work and her attendance to her attention prior to the events of March 2013. She denies that she ever raised her voice to the Complainant.

Ms O’Sullivan told the Court that the Complainant was due to attend work on 21 March 2013 but failed to attend on that date. She said that the Complainant turned up unannounced in the workplace on 22 March 2013. The witness couldn’t recall whether or not the Director of Nursing was present when she and the Complainant met on that date but recalls that the Director of Nursing telling her that the Complainant had walked out of the job. The Witness denies that she told the Complainant to go home on the 22^nd. She accepts that she told the Complainant on that date that she no longer worked in the nursing home based on what the Director of Nursing had informed her following the Complainant’s non-appearance on 21 March 2013. She told the Court that in her view the Complainant didn’t accept this but just went home, nevertheless.

Ms O’Sullivan accepts that she had a telephone conversation with the Complainant’s GP on the date that the GP had completed the pregnancy risk assessment of the Complainant. The witness could not recall who initiated that telephone call. She denied suggesting that the Complainant was at risk of prolapse and further denied that she in any way prevented the Complainant from returning to work because of her pregnancy. She also told the Court she was not in a position to support the Complainant’s request for Health and Safety Benefit as the Complainant had been declared fit for work by her GP.

Discussion and Decision

These complaints of gender discrimination and harassment fall to be considered by this Court by way of a de novo rehearing of the case. It follows that, although the appeal was initiated by the Respondent, the burden of proof rests initially on the Complainant. Section 85A(1) of the Employment Equality Act 1998 provides as follows in relation to the burden of proof on a Complainant who alleges discriminatory treatment contrary to the Act:

• “Where in any proceedings facts are established by or on behalf of a complainant from which it may be presumed that there has been discrimination in relation to him or her, it is for the respondent to prove the contrary.”

• “The first requirement is that the claimant must establish facts from which it may be presumed that the principle of equal treatment has not been applied to them. This indicates that a claimant must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination.

  It is only if these primary facts are established to the satisfaction of the Court, and they are regarded by the Court as being of sufficient significance to raise a presumption of discrimination, that the onus shifts to the respondent to prove that there is no infringement of the principle of equal treatment.”

• “The type or range of facts which may be relied upon by a complainant may vary significantly from case to case. The law provides that the probative burden shifts where a complainant proves facts from which it may be presumed that there has been direct or indirect discrimination. The language used indicates that where the primary facts alleged are proved it remains for the Court to decide if the inference or presumption contended for can properly be drawn from those facts. This entails a consideration of the range of conclusions which may appropriately be drawn to explain a particular fact or a set of facts which are proved in evidence. At the initial stage the complainant is merely seeking to establish a prima facie case. Hence, it is not necessary to establish that the conclusion of discrimination is the only, or indeed the most likely, explanation which can be drawn from the proved facts. It is sufficient that the presumption is within the range of inferences which can reasonably be drawn from those facts.”

The Court is of the view that the Complainant in this case has failed to make out aprima faciecase of discrimination or harassment on the gender ground in the circumstances that arose in her place of work in March 2013. Accordingly, the appeal succeeds.

The Court so determines.

Signed on behalf of the Labour Court



Alan Haugh
13 July 2017______________________
MNDeputy Chairman



NOTE

Enquiries concerning this Determination should be addressed to Michael Neville, Court Secretary.